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DoJ-DHS Law Enforcement Guidelines for First Amendment-Protected Events

Law Enforcement Guidelines for First Amendment-Protected Events

34 pages

October 2011

4.1 MB

As articulated in the United States Constitution, one of the freedoms guaranteed by the First Amendment is the right of persons and groups to assemble peacefully. Whether demonstrating, counterprotesting, or showing support for a cause, individuals and groups have the right to peacefully gather. Law enforcement, in turn, has the responsibility to ensure public safety while protecting the privacy and associated rights of individuals.

To support agencies as they fulfill their public safety responsibilities, the Criminal Intelligence Coordinating Council (CICC) developed this paper to provide guidance and recommendations to law enforcement officers in understanding their role in First Amendment-protected events. This paper is divided into three areas, designed to provide in-depth guidance for law enforcement.

Pre-Event Stage—Discusses how law enforcement will plan for an event or demonstration where First Amendment protections are involved, focusing on the activity that begins when law enforcement leadership learns of an event and must determine the level, if any, of involvement at the event, from both public safety and investigative standpoints.

Operational Stage—Focuses on how law enforcement will respond to the event, based on the findings from the Pre-Event Stage, including the development and execution of the Operations Plan.

Post-Event Stage—Addresses how and whether information obtained as a result of the event (both during the Pre-Event Stage and Operational Stage) will be evaluated, disseminated, retained, or discarded, as per agency policy.

As agencies respond to First Amendment-protected events, law enforcement leadership should be aware of certain “red flag” issues that may arise as they assess whether the agency and personnel should be involved in these events and, if so, what form that involvement should take. As agencies review and understand the concepts and recommendations within this paper, special consideration should be given to these “red flag” issues to ensure that law enforcement agencies and personnel do not infringe on the rights of persons and groups.

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The purpose of this paper is to provide greater awareness and understanding of the appropriate role of law enforcement in events and demonstrations where First Amendment rights are involved. This paper provides guidance and recommendations to law enforcement officers as they prepare for, respond to, and follow up with events, activities, and assemblies that are protected by the First Amendment of the Constitution of the United States of America.

As officers address these types of events, the three-stage process identified in this paper should be incorporated into agency policies, manuals, and/or directives. This process, while focusing on law enforcement’s response to First Amendment events and activities, is not designed to limit the ability of officers to engage in normal criminal investigations or public safety missions. A law enforcement agency may have special rules and procedures governing the levels of review and approval required to engage in preliminary or full investigations or other activities discussed herein; as such, officers should be aware of and understand these rules and procedures.

Fusion Centers

Fusion centers can play a valuable role in supporting law enforcement’s involvement in First Amendment-protected events. As part of the Pre-Event Stage, fusion centers can support state, local, tribal, and territorial agencies as they undergo a Pre-Event Assessment. This support may include the completion of an applicable assessment and the utilization of publicly available material (such as social media tools and resources) that pertains to potential threats to the event and/or organizations participating in the event, including potential counterdemonstration groups. If the Pre-Event Assessment does not identify any risk or threat, then the fusion center should not distribute the assessment beyond those customers who are serving a public safety role for the event. Fusion centers may also support the Operational Stage by assisting in information-/intelligence-related inquiries officers may have in response to an event.

If a criminal predicate or reasonable suspicion is identified or the findings of the Pre-Event Assessment provide specific, actionable intelligence, fusion centers may support agency leadership and law enforcement officers by identifying the collection requirements3 applicable to the event, based on the mission and role of the fusion center. In those limited circumstances, fusion centers should also be involved in any post-event activities, including the information evaluation, dissemination, and retention efforts. Fusion centers should not be involved in post-event evaluation, dissemination, and retention efforts of events that involve only routine public safety issues, such as conflicts between demonstrators or crowd-control problems.

“Red Flag” Areas

“Red flags” are issues and concerns identified throughout the three-stage process that law enforcement should carefully evaluate before proceeding. As agencies utilize the guidance identified in this paper and respond to First Amendment-protected events, there are certain areas that law enforcement leadership must be aware of as they assess whether and to what degree, if any, officers should be involved in these events. Law enforcement leadership should clearly articulate the reason, purpose, and justification for collecting information when addressing these “red flag” areas in the agency Operations Plan.

2. Operational Red Flags
• Sharing information about the group(s) with other law enforcement agencies or criminal justice entities that do not have an applicable law enforcement mission.
• Taking pictures and videos of the event.
– Collecting names or other identifying information (such as license plates) of participants, people in the area, counterdemonstrators, or bystanders watching the event.

3. Post-Event Red Flags
• Retaining information beyond the purpose for which it was obtained or where no indication of criminal activity was found.
• Sharing information about the group with other justice entities.
• Not responding to reasonable inquiries regarding the role of law enforcement at the event.

It is imperative that law enforcement leadership distinguish between appropriate operational planning for activities where a criminal predicate exists and those activities protected by the U.S. Constitution. Leadership should recognize and consider these issues throughout their planning process and clearly articulate law enforcement’s role (as well as what law enforcement will not be involved in) throughout the planning process. If a legal or justified basis cannot be articulated, further research should be conducted before proceeding.

As with all law enforcement response, officers should adhere to constitutional protections, both federal and state; court decision(s); state statutes; and local ordinances, as well as agency privacy policies and procedures and other relevant resources, to ensure their response is in line with agency policy and procedures.

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Prohibited conduct may include:

Investigating and collecting, maintaining, using, or sharing information regarding persons or groups solely because they are involved in constitutionally protected activity.

Investigating and collecting, maintaining, using, or sharing information regarding persons or groups solely because of the content of their speech (e.g., if there is no reasonable law enforcement purpose, such as criminal conduct advocated or planned or threat to public safety).

Investigating and collecting, maintaining, using, or sharing information regarding persons’ or groups’ exercise of their First Amendment rights for a purpose unrelated to the event.

Instructing the debriefing of or questioning witnesses, event participants, or arrestees regarding their social, political, or religious views unless specifically related to criminal conduct and then only as necessary to achieve the clearly stated objective in the Pre-Event Work Plan.

Collecting, maintaining, using, or sharing information that is outside the scope of the stated objectives of the investigation unless exigent circumstances justify modification of those objectives.

Collecting, maintaining, using, or sharing information without evaluating it and marking it for source reliability and content validity prior to maintaining, using, or sharing it.

Collecting, maintaining, using, or sharing information (such as names) in political petitions, mailing lists, organizational memberships, or writings espousing a particular view that is protected by the First Amendment.

Investigating persons or groups solely because of:

Advocating a position in their speech or writings that an officer finds to be offensive or disagreeable.

Support for unpopular causes.

Ethnic background, race, or national origin.

Religion or religious affiliations.

Noncriminal personal habits.

Associations with persons that are not of a criminal nature.

Association with or being related to persons belonging to an organization espousing views protected by the First Amendment.

Investigating, disrupting, interfering with, or harassing any person for the purpose of:

Preventing the person from engaging in conduct protected by the First Amendment.

Retaliating against the person for engaging in conduct protected by the First Amendment.

Discriminating against the person on the basis of conduct protected by the First Amendment.

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Professional conduct—The presence of law enforcement officers at an event may arouse concern. Therefore, emphasis should be made regarding the importance for officers to be courteous and respectful. Officers should not:

Harass, confront, or intimidate persons attending public gatherings or make comments about the views they express.

Interview or otherwise question event participants engaged in First Amendment-related activities, unless directed by a supervisor as part of an authorized investigative effort.

Exception: If an officer witnesses a crime being committed or has reasonable suspicion that a crime may be committed (such as an expressed threat), based on the Operations Plan, agency policy, or state law, the officer may question participants, as appropriate.

Seize participants’ or onlookers’ cameras, cell phones, or materials unless during the course of placing the person under a lawful arrest.

Disclosure of identity—If consistent with the Operations Plan, officers may attend public rallies and walk in public parades without disclosing their identity provided that their purpose is solely to monitor the rally or parade for public safety and criminal conduct issues. In this capacity, officers will not direct or influence the participants of the event and will not affirmatively represent themselves to be a participant or a member of an organization participating in the event (such as wearing clothing indicating their involvement with the organization). If there is an investigative element based on criminal activity, undercover tactics may be applied to officers attending the event based on agency policies and procedures.

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